This document includes Senate 2nd and 3rd Reading Floor Amendments incorporated into the bill on Wed, Mar 11, 2015 at 12:03 PM by lpoole.
Representative Daniel McCay proposes the following substitute bill:


1     
EDUCATION ABUSE POLICY

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Daniel McCay

5     
Senate Sponsor: Aaron Osmond

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to school personnel employment and licensing
10     procedures and student abuse reporting.
11     Highlighted Provisions:
12          This bill:
13          ▸     modifies requirements for providing and obtaining employment and disciplinary
14     history of school personnel;
15          ▸     modifies requirements and procedures for educator licensing;
16          ▸     gives rulemaking authority to the State Board of Education;
17          ▸     modifies provisions related to mandatory reporting of student abuse; and
18          ▸     makes technical changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          This bill provides a special effective date.
22a     Ŝ→ This bill provides a coordination clause. ←Ŝ
23     Utah Code Sections Affected:
24     AMENDS:
25          53A-6-402, as repealed and reenacted by Laws of Utah 1999, Chapter 108
26          53A-6-502, as last amended by Laws of Utah 2003, Chapter 315
27          53A-6-604, as enacted by Laws of Utah 1999, Chapter 108
28          77-37-4, as last amended by Laws of Utah 2014, Chapter 90
29     REPEALS AND REENACTS:
30          53A-6-306, as last amended by Laws of Utah 2010, Chapter 283
31          53A-6-307, as enacted by Laws of Utah 1999, Chapter 108
32          53A-6-405, as enacted by Laws of Utah 1999, Chapter 108
33          53A-6-501, as last amended by Laws of Utah 2011, Chapter 320
33a          Ŝ→ Utah Code Sections Affected by Coordination Clause:
33b          53A-6-306, as last amended by Laws of Utah 2010, Chapter 283 ←Ŝ
34     

35     Be it enacted by the Legislature of the state of Utah:
36          Section 1. Section 53A-6-306 is repealed and reenacted to read:
37          53A-6-306. UPPAC duties and procedures.
38          (1) The board may direct UPPAC to review a complaint about an educator and
39     recommend that the board:
40          (a) dismiss the complaint; or
41          (b) investigate the complaint in accordance with this section.
42          (2) (a) The board may direct UPPAC to:
43          (i) in accordance with this section, investigate a complaint's allegation or decision; or
44          (ii) hold a hearing.
45          (b) UPPAC may initiate a hearing as part of an investigation.
46          (c) Upon completion of an investigation or hearing, UPPAC shall:
47          (i) provide findings to the board; and
48          (ii) make a recommendation for board action.
49          (d) UPPAC may not make a recommendation described in Subsection (2)(c)(ii) to
50     adversely affect an educator's license unless UPPAC gives the educator an opportunity for a
51     hearing.
52          (3) (a) The board may:
53          (i) select an independent investigator to conduct a UPPAC investigation with UPPAC
54     oversight; or
55          (ii) authorize UPPAC to select and oversee an independent investigator to conduct an
56     investigation.

57          (b) In conducting an investigation, UPPAC or an independent investigator shall
58     conduct the investigation independent of and separate from a related criminal investigation.
59          (c) In conducting an investigation, UPPAC or an independent investigator may:
60          (i) in accordance with Section 53A-6-603 administer oaths and issue subpoenas; or
61          (ii) receive evidence related to an alleged offense, including sealed or expunged
62     records released to the board under Section 77-40-109.
63          (d) If UPPAC finds that reasonable cause exists during an investigation, UPPAC may
64     recommend that the board initiate a criminal background check on an educator.
65          (e) UPPAC has a rebuttable presumption that an educator committed a sexual offense
66     against a minor child if the educator voluntarily surrendered a license or certificate or allowed a
67     license or certificate to lapse in the face of a charge of having committed a sexual offense
68     against a minor child.
69          (4) The board may direct UPPAC to:
70          (a) recommend to the board procedures for:
71          (i) receiving and processing complaints;
72          (ii) investigating a complaint's allegation or decision;
73          (iii) conducting hearings; or
74          (iv) reporting findings and making recommendations to the board for board action;
75          (b) recommend to the board or a professional organization of educators:
76          (i) standards of professional performance, competence, and ethical conduct for
77     educators; or
78          (ii) suggestions for improvement of the education profession; or
79          (c) fulfill other duties the board finds appropriate.
80          (5) UPPAC may not participate as a party in a dispute relating to negotiations between:
81          (a) a school district and the school district's educators; or
82          (b) a charter school and the charter school's educators.
83          (6) The board shall make rules establishing UPPAC duties and procedures.
84          Section 2. Section 53A-6-307 is repealed and reenacted to read:
85          53A-6-307. Licensing power of the board -- Licensing final action -- Appeal rights.
86          (1) The board holds the power to license educators.
87          (2) (a) The board shall take final action with regard to an educator license.

88          (b) An entity other than the board may not take final action with regard to an educator
89     license.
90          (3) (a) In accordance with Subsection (3)(b), a license applicant or an educator may
91     seek judicial review of a final action made by the board under this chapter.
92          (b) A license applicant or educator may file a petition for judicial review of the board's
93     final action if the license applicant or educator files a petition within 30 days after the day on
94     which the license applicant or educator received notice of the final action.
95          Section 3. Section 53A-6-402 is amended to read:
96          53A-6-402. Evaluation information on current or prospective school employees --
97     Notice to employee -- Mandatory employment history check -- Exemption from liability.
98          (1) (a) The [office's administrator of teacher licensing may] board shall provide the
99     appropriate administrator of a public or private school or of an agency outside the state [which]
100     that is responsible for licensing or [certification of educators with any] certifying educational
101     personnel with a recommendation or other information possessed by the [office which] board
102     that has significance in evaluating the employment or license of:
103          (i) a current or prospective school employee[, license holder, or applicant for
104     licensing.];
105          (ii) an educator or education license holder; or
106          (iii) a license applicant.
107          (b) Information supplied under Subsection (1)(a) [may] shall include:
108          (i) the complete record of a hearing [or]; and
109          (ii) the investigative report for matters [which] that:
110          [(i)] (A) the educator has had an opportunity to contest; and
111          [(ii)] (B) did not proceed to a hearing.
112          (2) At the request of the [office's administrator of teacher licensing,] board, an
113     administrator of a public school or school district shall, and an administrator of a private school
114     may, provide [any] a recommendation or other information possessed by the school or school
115     district [which] that has significance in evaluating the employment or licensure of:
116          (a) a current or prospective school employee[, license holder, or applicant for
117     licensing.];
118          (b) an educator or education license holder; or

119          (c) a license applicant.
120          (3) If a decision is made to deny licensure, to not hire a prospective employee, or to
121     take action against a current employee or educator based upon information provided under this
122     section, the affected individual shall receive notice of the information and be given an
123     opportunity to respond to the information.
124          Ŝ→ [
(4) A local school board, a charter school governing board, or the Utah Schools for the
125     Deaf and the Blind shall obtain references and a discipline record from prior employers of a
126     potential employee before hiring:
127          (a) an educator; or
128          (b) an individual who:
129          (i) works in a public school as an employee; and
130          (ii) has significant unsupervised access to students.
]

130a     
(4) A local school board, a charter school governing board, or the Utah Schools for the Deaf and
130b     the Blind shall obtain references and a discipline record from prior employers of an individual
130c     before hiring the individual to work:
130d     (a) as an educator; or
130e     (b) in a public school, if the individual would have significant unsupervised access to students. ←Ŝ
131          [(4)] (5) A person who, in good faith, provides a recommendation or discloses or
132     receives information under this section is exempt from civil and criminal liability relating to
133     that recommendation, receipt, or disclosure.
134          [(5)] (6) For purposes of this section, "employee" includes a volunteer.
135          Section 4. Section 53A-6-405 is repealed and reenacted to read:
136          53A-6-405. Ineligibility for educator license.
137          (1) The board may refuse to issue a license to a license applicant if the board finds
138     good cause for the refusal, including behavior of the applicant:
139          (a) found pursuant to a criminal, civil, or administrative matter after reasonable
140     opportunity for the applicant to contest the allegation; and
141          (b) considered, as behavior of an educator, to be:
142          (i) immoral, unprofessional, or incompetent behavior; or
143          (ii) a violation of standards of ethical conduct, performance, or professional
144     competence.
145          (2) The board may not issue, renew, or reinstate an educator license if the license
146     applicant or educator:
147          (a) was convicted of a felony of a sexual nature;
148          (b) pled guilty to a felony of a sexual nature;
149          (c) entered a plea of no contest to a felony of a sexual nature;

150          (d) entered a plea in abeyance to a felony of a sexual nature;
151          (e) was convicted of a sexual offense under Title 76, Chapter 5, Part 4, Sexual
152     Offenses, against a minor child;
153          (f) engaged in sexually explicit conduct, as defined in Section 76-5b-103, with a
154     student who is a minor;
155          (g) engaged in sexually explicit conduct, as defined in Section 76-5b-103, with a
156     student who is:
157          (i) not a minor; and
158          (ii) enrolled in a school where the license applicant or educator is or was employed; or
159          (h) admits to the board or UPPAC that the license applicant or educator committed
160     conduct that amounts to:
161          (i) a felony of a sexual nature; or
162          (ii) a sexual offense or sexually explicit conduct described in Subsection (2)(e), (f), or
163     (g).
164          (3) If an individual is ineligible for licensure under Subsection (1) or (2), a public
165     school may not:
166          (a) employ the person in the public school; or
167          (b) allow the person to volunteer in the public school.
168          (4) (a) If the board denies licensure under this section, the board shall immediately
169     notify the applicant of:
170          (i) the denial; and
171          (ii) the applicant's right to request a hearing before UPPAC.
172          (b) Upon receipt of a notice described in Subsection (4)(a), an applicant may, within 30
173     days after the day on which the applicant received the notice, request a hearing before UPPAC
174     for the applicant to review and respond to all evidence upon which the board based the denial.
175          (c) If the board receives a request for a hearing described in Subsection (4)(b), the
176     board shall direct UPPAC to hold a hearing.
177          Section 5. Section 53A-6-501 is repealed and reenacted to read:
178          53A-6-501. Board disciplinary action of an educator.
179          (1) (a) The board shall direct UPPAC to investigate an allegation, administrative
180     decision, or judicial decision that evidences an educator is unfit for duty because the educator

181     exhibited behavior that:
182          (i) is immoral, unprofessional, or incompetent; or
183          (ii) violates standards of ethical conduct, performance, or professional competence.
184          (b) If the board determines an allegation or decision described in Subsection (1)(a)
185     does not evidence an educator's unfitness for duty, the board may dismiss the allegation or
186     decision without an investigation or hearing.
187          (2) The board shall direct UPPAC to investigate and allow an educator to respond in a
188     UPPAC hearing if the board receives an allegation that the educator:
189          (a) was charged with a felony of a sexual nature;
190          (b) was convicted of a felony of a sexual nature;
191          (c) pled guilty to a felony of a sexual nature;
192          (d) entered a plea of no contest to a felony of a sexual nature;
193          (e) entered a plea in abeyance to a felony of a sexual nature;
194          (f) was convicted of a sexual offense under Title 76, Chapter 5, Part 4, Sexual
195     Offenses, against a minor child;
196          (g) engaged in sexually explicit conduct, as defined in Section 76-5b-103, with a
197     student who is a minor; or
198          (h) engaged in sexually explicit conduct, as defined in Section 76-5b-103, with a
199     student who is:
200          (i) not a minor; and
201          (ii) enrolled in a school where the educator is or was employed.
202          (3) Upon notice that an educator allegedly violated Section 53A-6-502, the board shall
203     direct UPPAC to:
204          (a) investigate the alleged violation; and
205          (b) hold a hearing to allow the educator to respond to the allegation.
206          (4) Upon completion of an investigation or hearing described in this section, UPPAC
207     shall:
208          (a) provide findings to the board; and
209          (b) make a recommendation for board action.
210          (5) (a) Except as provided in Subsection (5)(b), upon review of UPPAC's findings and
211     recommendation, the board may:

212          (i) revoke the educator's license;
213          (ii) suspend the educator's license;
214          (iii) restrict or prohibit the educator from renewing the educator's license;
215          (iv) warn or reprimand the educator;
216          (v) enter into a written agreement with the educator that requires the educator to
217     comply with certain conditions;
218          (vi) direct UPPAC to further investigate or gather information; or
219          (vii) take other action the board finds to be appropriate for and consistent with the
220     educator's behavior.
221          (b) Upon review of UPPAC's findings and recommendation, the board shall revoke the
222     license of an educator who:
223          (i) was convicted of a felony of a sexual nature;
224          (ii) pled guilty to a felony of a sexual nature;
225          (iii) entered a plea of no contest to a felony of a sexual nature;
226          (iv) entered a plea in abeyance to a felony of a sexual nature;
227          (v) was convicted of a sexual offense under Title 76, Chapter 5, Part 4, Sexual
228     Offenses, against a minor child;
229          (vi) engaged in sexually explicit conduct, as defined in Section 76-5b-103, with a
230     student who is a minor;
231          (vii) engaged in sexually explicit conduct, as defined in Section 76-5b-103, with a
232     student who is:
233          (A) not a minor; and
234          (B) enrolled in a school where the educator is or was employed; or
235          (viii) admits to the board or UPPAC that the applicant committed conduct that amounts
236     to:
237          (A) a felony of a sexual nature; or
238          (B) a sexual offense or sexually explicit conduct described in Subsection (5)(b)(v), (vi),
239     or (vii).
240          (c) The board may not reinstate a revoked license.
241          (d) Before the board takes adverse action against an educator under this section, the
242     board shall ensure that the educator had an opportunity for a UPPAC hearing.

243          Section 6. Section 53A-6-502 is amended to read:
244          53A-6-502. Mandatory reporting of physical or sexual abuse of students.
245          (1) For purposes of this section, "educator" means, in addition to a person included
246     under Section 53A-6-103, a person, including a volunteer or temporary employee, who at the
247     time of an alleged offense was performing a function in a private school for which a license
248     would be required in a public school.
249          (2) In addition to any duty to report suspected cases of child abuse or neglect under
250     Section 62A-4a-403, an educator who has reasonable cause to believe that a student may have
251     been physically or sexually abused by a school employee shall immediately report the belief
252     and all other relevant information to the school principal, to the superintendent, or to the
253     [office] board.
254          (3) A school administrator who has received a report under Subsection (2) or who
255     otherwise has reasonable cause to believe that a student may have been physically or sexually
256     abused by an educator shall immediately report that information to the [office] board.
257          [(4) Failure to comply with Subsection (2) or (3) shall be considered unprofessional
258     conduct.]
259          (4) Upon notice that an educator allegedly violated Subsection (2) or (3), the board
260     shall direct UPPAC to investigate the educator's alleged violation as described in Section
261     53A-6-501.
262          (5) A person who makes a report under this section in good faith shall be immune from
263     civil or criminal liability that might otherwise arise by reason of that report.
264          Section 7. Section 53A-6-604 is amended to read:
265          53A-6-604. Rules for conducting hearings -- Standard of proof.
266          (1) The board[,] and each local school board[, and UPPAC] shall [each] adopt rules for
267     the conduct of hearings to ensure that requirements of due process are met.
268          (2) An accused party shall be provided not less than 15 days before a hearing with:
269          (a) notice of the hearing;
270          (b) the law, rule, or policy alleged to have been violated;
271          (c) sufficient information about the allegations and the evidence to be presented in
272     support of the allegations to permit the accused party to prepare a meaningful defense; and
273          (d) a copy of the rules under which the hearing will be conducted.

274          (3) If an accused party fails to request a hearing within 30 days after written notice is
275     sent to the party's address as shown on the records of the local board, for actions taken under
276     the auspices of a local board, or on the records of the [office] board, for actions taken under the
277     auspices of [UPPAC or] the [state] board, then the accused party shall be considered to have
278     waived the right to a hearing and the action may proceed without further delay.
279          (4) Hearing fact finders shall use the preponderance of evidence standard in deciding
280     all questions unless a higher standard is required by law.
281          (5) Unless otherwise provided in [Title 53A] this title, the decisions of state and local
282     boards are final determinations under this section, appealable to the appropriate court for
283     review.
284          Section 8. Section 77-37-4 is amended to read:
285          77-37-4. Additional rights -- Children.
286          In addition to all rights afforded to victims and witnesses under this chapter, child
287     victims and witnesses shall be afforded these rights:
288          (1) Children have the right to protection from physical and emotional abuse during
289     their involvement with the criminal justice process.
290          (2) Children are not responsible for inappropriate behavior adults commit against them
291     and have the right not to be questioned, in any manner, nor to have allegations made, implying
292     this responsibility. Those who interview children have the responsibility to consider the
293     interests of the child in this regard.
294          (3) Child victims and witnesses have the right to have interviews relating to a criminal
295     prosecution kept to a minimum. All agencies shall coordinate interviews and ensure that they
296     are conducted by persons sensitive to the needs of children.
297          (4) Child victims have the right to be informed of available community resources that
298     might assist them and how to gain access to those resources. Law enforcement and prosecutors
299     have the duty to ensure that child victims are informed of community resources, including
300     counseling prior to the court proceeding, and have those services available throughout the
301     criminal justice process.
302          (5) (a) Child victims have the right, once an investigation has been initiated by law
303     enforcement or the Division of Child and Family Services, to keep confidential their interviews
304     that are conducted at a Children's Justice Center, including video and audio recordings, and

305     transcripts of those recordings. Except as provided in Subsection (6), recordings and
306     transcripts of interviews may not be distributed, released, or displayed to anyone without a
307     court order.
308          (b) A court order described in Subsection (5)(a):
309          (i) shall describe with particularity to whom the recording or transcript of the interview
310     may be released and prohibit further distribution or viewing by anyone not named in the order;
311     and
312          (ii) may impose restrictions on access to the materials considered reasonable to protect
313     the privacy of the child victim.
314          (c) A parent or guardian of the child victim may petition a juvenile or district court for
315     an order allowing the parent or guardian to view a recording or transcript upon a finding of
316     good cause. The order shall designate the agency that is required to display the recording or
317     transcript to the parent or guardian and shall prohibit viewing by anyone not named in the
318     order.
319          (d) Following the conclusion of any legal proceedings in which the recordings or
320     transcripts are used, the court shall order the recordings and transcripts in the court's file sealed
321     and preserved.
322          (6) (a) The following offices and their designated employees may distribute and receive
323     a recording or transcript to and from one another without a court order:
324          (i) the Division of Child and Family Services;
325          (ii) administrative law judges employed by the Department of Human Services;
326          (iii) Department of Human Services investigators investigating the Division of Child
327     and Family Services or investigators authorized to investigate under Section 62A-4a-202.6;
328          (iv) an office of the city attorney, county attorney, district attorney, or attorney general;
329          (v) a law enforcement agency;
330          (vi) a Children's Justice Center established under Section 67-5b-102; or
331          (vii) the attorney for the child who is the subject of the interview.
332          (b) In a criminal case or in a juvenile court in which the state is a party:
333          (i) the parties may display and enter into evidence a recording or transcript in the
334     course of a prosecution;
335          (ii) the state's attorney may distribute a recording or transcript to the attorney for the

336     defendant, pro se defendant, respondent, or pro se respondent pursuant to a valid request for
337     discovery;
338          (iii) the attorney for the defendant or respondent may do one or both of the following:
339          (A) release the recording or transcript to an expert retained by the attorney for the
340     defendant or respondent if the expert agrees in writing that the expert will not distribute,
341     release, or display the recording or transcript to anyone without prior authorization from the
342     court; or
343          (B) permit the defendant or respondent to view the recording or transcript, but may not
344     distribute or release the recording or transcript to the defendant or respondent; and
345          (iv) the court shall advise a pro se defendant or respondent that a recording or
346     transcript received as part of discovery is confidential and may not be distributed, released, or
347     displayed without prior authorization from the court.
348          (c) A court's failure to advise a pro se defendant or respondent that a recording or
349     transcript received as part of discovery is confidential and may not be used as a defense to
350     prosecution for a violation of the disclosure rule.
351          (d) In an administrative case, pursuant to a written request, the Division of Child and
352     Family Services may display, but may not distribute or release, a recording or transcript to the
353     respondent or to the respondent's designated representative.
354          (e) (i) Within two business days of a request from a parent or guardian of a child
355     victim, an investigative agency shall allow the parent or guardian to view a recording after the
356     conclusion of an interview, unless:
357          (A) the suspect is a parent or guardian of the child victim;
358          (B) the suspect resides in the home with the child victim; or
359          (C) the investigative agency determines that allowing the parent or guardian to view
360     the recording would likely compromise or impede the investigation.
361          (ii) If the investigative agency determines that allowing the parent or guardian to view
362     the recording would likely compromise or impede the investigation, the parent or guardian may
363     petition a juvenile or district court for an expedited hearing on whether there is good cause for
364     the court to enter an order allowing the parent or guardian to view the recording in accordance
365     with Subsection (5)(c).
366          (iii) A Children's Justice Center shall coordinate the viewing of the recording described

367     in this Subsection (6)(e).
368          (f) A multidisciplinary team assembled by a Children's Justice Center or an
369     interdisciplinary team assembled by the Division of Child and Family Services may view a
370     recording or transcript, but may not receive a recording or transcript.
371          (g) A Children's Justice Center:
372          (i) may distribute or display a recording or transcript to an authorized trainer or
373     evaluator for purposes of training or evaluation; and
374          (ii) may display, but may not distribute, a recording or transcript to an authorized
375     trainee.
376          (h) An authorized trainer or instructor may display a recording or transcript according
377     to the terms of the authorized trainer's or instructor's contract with the Children's Justice Center
378     or according to the authorized trainer's or instructor's scope of employment.
379          (i) (i) In an investigation under Section 53A-6-306, in which a child victim who is the
380     subject of the recording or transcript has alleged criminal conduct against an educator, a law
381     enforcement agency may distribute or release the recording or transcript to an investigator
382     operating under [UPPAC] State Board of Education authorization, upon the investigator's
383     written request.
384          (ii) If the respondent in a case investigated under Section 53A-6-306 requests a hearing
385     authorized under that section, the investigator operating under [UPPAC] State Board of
386     Education authorization may display, release, or distribute the recording or transcript to the
387     prosecutor operating under [UPPAC] State Board of Education authorization or to an expert
388     retained by an investigator.
389          (iii) Upon request for a hearing under Section 53A-6-306, a prosecutor operating under
390     [UPPAC] State Board of Education authorization may display the recording or transcript to a
391     pro se respondent, to an attorney retained by the respondent, or to an expert retained by the
392     respondent.
393          (iv) The parties to a hearing authorized under Section 53A-6-306 may display and enter
394     into evidence a recording or transcript in the course of a prosecution.
395          (7) Except as otherwise provided in this section, it is a class B misdemeanor for any
396     individual to distribute, release, or display any recording or transcript of an interview of a child
397     victim conducted at a Children's Justice Center.

398          Section 9. Effective date.
399          This bill takes effect on July 1, 2015.
399a          Ŝ→ Section 10. Coordinating H.B. 345 with H.B. 124 -- Substantive amendment.
399b          If this H.B. 345 and H.B.124, Education Background Check Amendments, both pass
399c     and become law, it is the intent of the Legislature that the Office of Legislative Research and
399d     General Counsel, in preparing the Utah Code database for publication, amend Subsection
399e     53A-6-306(3)(d) to read:      "(d) If UPPAC finds that reasonable cause exists during an
399f     investigation, UPPAC may recommend that the board initiate a background check on an
399g     educator as described in Section 53A-15-1504." ←Ŝ